There is Some Dispute on the Evidence: The Cowboy Justice Edition

The Ballad of Buster Scruggs is a fun sort of Western anthology of short films following quintessential cowboy themes and locations: the gunfight, the saloon, the prospector, the wagon train, the open prairie, the annoying dog. I love the Coen Brothers’ film-making and this film was particularly appealing for the gorgeous scenery that recalled a lot of my childhood geography. I’m haunted by the scene in which something is thrown in the river, and why.

The film led me to contemplate the cowboy life and pursue some ideas down some gopher holes. It starts, naturally, with a Google and CANLII inquiries:

I grew up in Southern Alberta, near where the “mountains meet the prairies,” in a small city steeped in western stereotypes and history, coal mining, ranching, farming, and settler racism enforced by the RCMP. As I’ve written before, the city’s summer celebration is “Whoop-Up” days and I can confirm, many cowboys do say “Yeehaw.”

I’ve been trying to remember what I learned about cowboys when I was in grade school. Could be I’ve forgotten. I’m absolutely sure I didn’t hear about John Ware, who I discovered while wandering around the cowboy thoughts. An African-American, he was one of the first Albertan Cowboys and was a founder of the ranch industry. He brought–drove–the first cattle to Alberta.

Ware was enslaved in South Carolina, moved to Texas after the Civil War, and drove cattle from Texas to Montana to what would be Alberta. He died in early 1905, after his horse tripped in a badger hole, crushing its rider and breaking his neck. One can only imagine the back story to this description: “Born into slavery, Ware worked his way to being one of the most well-respected figures in frontier Alberta, crossing race lines thanks to his good nature and hard work.” John Ware Ridge, west of Calgary, was formerly known as N— John Ridge, link now removed from Natural Resources Canada Geographical Names website–maybe providing a glimpse into what else he dealt with besides high respect. His cabin is in Dinosaur Provincial Park and he worked at Bar-U ranch.

Since there is a term “Cowboy Justice,” I had to assume that there must be Cowboy caselaw. From the admirable Ware to the ridiculous: Exhibit 1: Great Canadian Superbar sues the Saskatchewan Liquor and Gaming Authority (1997 CanLII 10878). The liquor authority suspended the bar’s permit for 5 days after a promotional event. They said free drinks were given out, Oh, and plus, there was a strip-tease, contrary to regulations:

Prohibited entertainment
It is a term and condition of every permit that no permittee shall permit or allow in the permitted premises…any activity or entertainment that consists of a striptease performance or wet clothing contest.

Inspector Burns was at the bar, and had “concerns” about a poster advertising an upcoming event, “Canada’s Own Men of Extreme.” Mr. Burns watched two performances by male dancers, The Russian Cossack and James Bond 007. He admitted, “he could not see if the Cossack’s buttocks were exposed” and while the dances were not erotic, the dancers “were very good athletes.”

Investigators Batke and Hemphill attended a different performance on a “ladies’ night.” The dancer, Shane, was introduced as the Resident Cowboy. He wore black pants, cowboy boots, vest, bow tie and a cowboy hat. The Resident Cowboy stripped down to his boxer shorts and then to his bikini briefs. However, “before the dancers started dancing with the lady patrons, they had put on their pants.” In any case, witnesses (none of whom included any female patrons) confirmed, “The ladies really quite liked it, enjoyed it.”

While the Court founds that the liquor regulations were not disguised Criminal Code regulations (that would be unconstitutional), it did determine that the regulation against a striptease violated the Charter guarantee of freedom of expression. Comparing this to a more egregious strip tease where there was physical contact between patrons and dancers, the Court concluded that the show at the Great Canadian Superbar posed no risk to public health or safety, so was constitutionally protected.

Counsel for the Superbar also argued that it didn’t get a fair hearing, as the members of the liquor commission didn’t take these charges seriously. According to the bar manager who attended the hearing, the commissioners

treated the allegations facing the Great Canadian Superbar in a very light hearted manner. They seemed to feel that the occasion demanded a great deal of levity and continuously broke out into laughter. In fact, they had to adjourn the meeting in order to contain themselves.

This allegation was unfounded: there was no violation of the principles of natural justice.

[NARRATOR:] And so, Shane the Resident Cowboy rode off into the prairie, to put on and then take off his cowboy hat for another day, and let his spurs jingle, jangle, jingle.

I love that the Resident Cowboy’s name is Shane, perhaps named for the Western Hero in Shane, who fought for and protected all the decent people who want a chance to live in peace in the valley. In the final scene of the film, young Joey, who would later report that other young boys had fallen down wells, follows an injured Shane out of town, calling plaintively for him to come back and perhaps dance again.

And apparently, some cowboys just love to dance. Exhibit 2: Christie v CitiFinancial Canada Inc, 2015 ABQB 487. The Court heard the case of dismissed district manager Jack Christie. CitiFinancial terminated him “for cause” because he failed to let upper management know about a incident in a Calgary hotel room during a corporate event convened “discuss changes, goals and incentives for the company for the new year and to reward previous achievements.”

After a day’s meeting, the company sponsored a “cowboy night” in one of the banquet rooms. Branch manager Chris Hierlmeier, from Spruce Grove, Alberta, was noticeably drunk and was “chest bumping” men and women at the event. Christie spoke to Hierlmeier, and told him to “settle down.” Hierlmeier, Christie and 4 other branch managers ended up in Hierlmeier’s hotel room for a sort of afterparty. From the Court:

In the room, the very inebriated Mr. Hierlmeier stripped down to his underwear and then later took these off so that he was completely naked, except for a cowboy hat which was variously on his head, or covering his genitals. He was dancing or moving around the room, and at one point started to manipulate his genitals, an activity that one of the witnesses called “penis puppeteer”. It seems he was manipulating his genitals in order to make various shapes and in an effort to be funny.

All of the other people in the room urged Mr. Hierlmeier to put his clothes back on, both while he still had his boxer shorts on and after he had stripped naked. At first, Mr. Hierlmeier did not heed them and continued to walk around in his semi-undressed and undressed state. On more than one occasion, he walked outside the door of the room both while he was wearing only his boxer shorts and when he was naked…

At one point, Hierlmeier either jumped or fell onto a bed where a female colleague was sitting, and put “his head on her chest momentarily before he was pushed off….and pulled off…. There is some dispute on the evidence respecting whether or not Mr. Hierlmeier was wearing his boxer shorts or other clothing when he did this.

In any event, after he was pulled off, Mr. Hierlmeier did put on his jeans, at least. (emphasis added)

Christie was fired for failing to deal appropriately with the sexual harassment and failing to alert management about Hierlmeier’s behaviour that clearly had the potential to damage the reputation of CitiFinancial, what with him walking naked in the hotel hall and such. The Court found that while Christie showed bad judgment, termination was too severe. It awarded Christie 16 months pay plus his bonus. Christie now works for the Alberta Treasury Branch; his 22 years at CitiFinancial are on his Linkedin profile.

Hierlmeier was, by the way, also fired.

Winnipeg Free Press

Exhibit 3: From the ridiculous to the tragic: R. v. Sophonow (No.2), 1986 CanLII 4613 (MB CA). Thomas Sophonow was charged with the murder of a Winnipeg doughnut shop clerk, Barbara Stoppel. The first trial ended in a mistrial, the second trial resulted in a guilty verdict overturned on appeal: a new trial was ordered.

Eye witness testimony was crucial. Witnesses described a “tall man in a cowboy hat” leaving the scene of the crime on December 23, 1981. On the strength of his answers when questioned, “photographic identification by two witnesses, which was both tentative and tenuous, his resemblance to the sketches, and his ownership of a cowboy hat, Sophonow was arrested” and charged within months by a police force under pressure and scrutiny.

Winnipeg Free Press

It wasn’t clear that there was a positive i.d. based on a line-up. An undercover officer went into the jail to see if he could get a confession from the accused, but Sophonow’s answers were “equivocal.” Sophonow was alleged to have confessed to other inmates, who are described by the appellate court as “self-interested felons.”

The Trial Judge failed to caution the jury about the problems with mistaken identification. He didn’t distinguish between the witnesses who identified Sophonow, and the witnesses who identified the “tall, thin man wearing a cowboy hat.” There were also multiple cowboy-hat wearing men near the scene that night: evidence included a sketch of a “cowboy of the afternoon” who went into a shoe shop, and a “cowboy of the night” at the scene of the crime.

The Crown’s case: “each of the two cowboys was the same person: Sophonow. However, there was doubt that Sophonow was the former cowboy, and because the afternoon cowboy was asserted to be the cowboy of the night, then there should have been reasonable doubt that the nighttime cowboy was Sophonow. There were also two additional witnesses whose evidence supported “the view that neither of the two cowboys was Sophonow.”

Sophonow also offered an alibi, that on the night of the crime, he had purchased Christmas stockings at the nearby Safeway grocery store, and tried to deliver them to a children’s hospital ward. Witnesses later came forward to describe a “tall, slim” man who showed up at the hospital; others described “someone not unlike him” who had purchased stockings at the Safeway. The case had to deal with “the controversy as to whether the accused was the tall, thin cowboy seen leaving the scene of the crime or the tall, thin benefactor bearing Christmas stockings to sick children, and the possibility that he was neither.”

A bizarre further twist: over the course of 4 days of deliberation, the jury had yet to reach a verdict. In light of their apparent difficulty, the Trial Judge advised them to “let God’s good sense” be the 13th juror. The jury returned on the 4th day with this note:

Your Lordship, with all respect, we have a juror who speaks of psychic powers and special gifts. We have tried with all diligence, sincerity and reason to reach a unanimous decision in this case. We are unable to do so because we feel this juror is mentally unable to deal with argument or discussion over the evidence as it is before us, or to communicate the juror’s thoughts clearly to us. We cannot deal with this.

The juror was Frances Kuntz.

The Court to the Foreman: “Now, in the note you say that she ‘speaks of psychic powers and special gifts.’ Could you tell me, was that something that was said to you by this juror and to other members of the jury?”
Jury Foreman: ”Yes, it was my Lord . . . She would not reason or accept some of the legitimate arguments on the grounds that in her mind she feels she knows what that person was saying by a feeling she has and by the appearance of the person, and she also claims it was passed on to her by her mother – some from her mother, some from her father, and she has these feelings and these powers that she can read that somebody is either telling the truth or not telling the truth.”
The Court: “The word ‘psychic’, is that your word or … ”
Jury Foreman: “No, that’s her words.”
The Court: “Did she actually use the words ‘psychic power’?”
Jury Foreman: “Yes, she did.”
The Court: “Could you tell me when these words and this description was given to you, were you alone or were the others present?”
Jury Foreman: “We were all present, my Lord, and it was heard.”
The Court: “When you formed this note that you gave me, was this with the concurrence of all the other members of the jury?”
Jury Foreman: “It was. We had a discussion on it. It was written out. It was read, and it was agreed on by everybody that this had to be presented.”

The Judge inquired about the juror’s “special powers.” Kuntz denied that she said she had special powers, and did not agree with the accuracy of the note. She would only say that she had a “gift for thinking…a way with thinking.” The Judge discharged the juror without hearing any sworn testimony or permitting cross-examination. Now, keep in mind, the Judge had also advised that God be the 13th juror.

The 11-person jury then returned with a guilty verdict.

The Court of Appeal set aside the verdict due to the significant evidentiary problems and exclusions and improper directions to the jury. The evidence of the cashier and the hospital employees was wrongfully excluded, denying the accused the opportunity to offer evidence supporting his alibi. The discharge of the juror denied Sophonow his right to be tried by 12 jurors. Given that it was a notorious case, the Court of Appeal also directed an acquittal, stating that a fourth trial would give witnesses the opportunity to become “even surer” of their evidence and it doubted whether 12 new jurors could be found.

Sophonow was exonerated after over 3 years in jail. Innocence Canada supported his cause and fought for his $2.3M compensation.

Innocence Canada also participated in an inquiry launched by the Manitoba Department of Justice subsequent to the case, on the use of in-custody informants.

From Innocence Canada;

Just as Thomas’ mental state has been forever changed by this series of events, so too has his reputation. Thomas has been officially exonerated; but as Justice Cory noted, “To wrongfully convict someone of a crime, particularly that of murder, is to forever damage the reputation of that person.” This reputation has made life difficult for Thomas at work and with his neighbours – not to mention the firebombing of his house that could have killed Thomas and his family. To quote Justice Cory once more, “Truly, he bore the mark of Cain.”